反垄断行政执法法律制衡机制研究
发布时间：2018-08-03 07:53
【摘要】：反垄断执法对中国和国际的竞争格局产生了重要的影响,本文以反垄断执法的法律制衡机制为研究对象,分析了现行反垄断执法架构存在的问题和造成的后果,运用权力制衡理论、竞争政策理论、软法与硬法理论在反垄断法中的应用,探讨在反垄断执法中反垄断法律和政策的合法有效适用,研究了反垄断执法程序内部的制衡和外部司法部门的法律制衡。通过对行政处罚执法与监督程序、行政处罚自由裁量权、宽大政策、行政指导等问题的研究,理出现在的反垄断执法体制存在的问题。并根据我国行政体制改革的现状与需要,提出建立中国竞争委员会、行政处罚委员会、审裁分离、实行行政法官、建立竞争法庭的必要和实施办法。本文由引言、正文与结论组成,引言部分介绍了本文的研究背景与现状、研究目的与内容、研究思路与方法、以及创新与不足之处。结论部分概括了本文的主要结论。正文部分由五章组成。第一章介绍了三大法律制衡的理论的发展,探究反垄断行政执法法律制衡的基本法学理论,探讨了三大理论对反垄断法及执法的影响。首先分析了权力制衡理论的基础和发展,总结和洛克、孟德斯鸠、汉密尔顿的分权与制衡理论,研究了古典学派的自由竞争、新古典学派的完善竞争、有效竞争理论在反垄断执法中的发展和适用,又对软法和硬法理论在行政执法中的重要作用进行了剖析。在此基础上总结了权力制衡理论、竞争理论和软硬法结合理论是反垄断执法法律制衡的法律基础,我国反垄断执法部门的构成、权力设置、救济和监督都体现了权力制衡,反垄断执法中的竞争政策的考量、垄断行为对市场竞争和损害后果的经济学分析体现了对竞争理论在反垄断执法中的重要作用。阐释了需要在执法实践中加强三理论作用,对反垄断司法制衡、执法部门内部制衡进行调整的必要性。分析了反垄断执法理论对执法的影响。首先,权力制衡理论在反垄断执法中得到应用,现行的反垄断执法机构的设置体现了权力制衡,其次竞争理论在反垄断执法中发挥重要影响,欧美国家在反垄断执法中运用竞争理论对我国反垄断执法产生启示和影响,再次分析了软硬法兼施在反垄断执法中的社会效果,行政处罚自由裁量权和反垄断行政指导在反垄断执法中地位明显。提出了因为执法内部的制衡导致反垄断执法机构执法效率不高等问题。第二章提出了我国反垄断行政执法呈现的问题,由于反垄断执法部门的授权范围、初步调查权的设定、中止调查和承诺规定、宽免政策、听证规定等执法程序设定不同导致执法后果差异,结合实际案例探讨由于执法部门规章不同导致造成的反垄断法分裂执行和执法条块化和威权不足的后果。着重分析了发改委和工商总局两执法部门在执法风格和执法方式及执法透明度不同形成的执法竞争和效率低下,反垄断程序不完善、自由裁量权过大导致行政相对人合法权益不能得到有效保障及司法对反垄断执法审查力度不够和问题。第三章分析了反垄断执法机构制衡与效果。首先分析了反垄断执法部门之间制衡的状态及存在的问题,认为存在着反垄断职责交叉、执法力度和执法认定方式、执法效果不同导致形成执法条块分割,进一步造成对反垄断法的执法肢解。第二对反垄断执法机构内部制衡包括执法程序、执法监督方式进行了梳理,包括举报、受理、现场检查、收集证据、听证、行政处罚送达、行政复议和诉讼整体程序进行剖析,对比法国和欧盟委员会、日本在反垄断执法中遵守的程序理清中国反垄断执法部门中存在的问题。再次分析了中国反垄断执法机构上下级的法律制衡,反垄断行政执法机构通过行政授权、行政复议和行政诉讼形成制约关系,认为新的行政复议法和行政诉讼法修改后,上级反垄断执法部门与下级反垄断执法部门的制衡作用更为明显。第四章对司法部门对反垄断执法的制衡进行了研究,结合了国际和国内反垄断司法的最新实践。首先对反垄断民事诉讼中法院认定和反垄断行政执法部门执法决定约束力的探讨,法院和反垄断行政执法部门在实体案例判断中的冲突解决。并对法院对反垄断行政执法决定的司法审查中的问题如新修的行政诉讼法对法院司法审查反垄断执法决定的影响、司法审查对反垄断执法的促进效应、行政垄断违法主体认定对司法审查效果的影响进行研究,提出学习欧美建立司法审查对反垄断行政执法的尊重权制度。还分析了反垄断行政执法的司法审查重点,对反垄断诉讼案件中举证责任的分配、法院对反垄断执法机关滥用行政处罚自由裁量权的制约进行了研究。总的来说,本章通过对反垄断司法对反垄断行政执法的司法审查实践,进一步说明了现行的反垄断司法法律制衡中不足。第五章是对权力制衡理论、竞争理论、软法与硬法相结合理论做出的进一步适用,对前几章分析的反垄断执法法律制衡中存在的制度性、结构性、程序性问题的具体解决办法。针对三个反垄断执法部门的权利分散、执法竞争、效率不高、分解法律的情况提出构建统一的反垄断执法部门中国竞争委员会,在竞争委员会内设行政处罚委员会,实行裁审分离,反垄断竞争执法局只负责调查案件由行政处罚委员会集体讨论进行案件定性和处罚。为增加执法透明度和公正性,推行执法全过程记录制度,推行反垄断行政处罚自由裁量权制度防止滥权和执法不一,推行行政法官制度促进执法中立。为解决司法对反垄断执法的有效制衡提出建立竞争法庭,统一审判反垄断等竞争案件,包括反垄断民事诉讼和行政诉讼,建立优秀稳定的竞争法官队伍,推行法院尊重行政的模式,建立均衡的司法和执法系统执行反垄断法,促进竞争政策的基础性地位,建立统一有序、公平公正的市场经济秩序。
[Abstract]:The anti-monopoly law enforcement has an important influence on the competition pattern of China and the international. This article takes the legal balance mechanism of antitrust law enforcement as the research object, analyzes the existing problems and consequences of the existing anti-monopoly law enforcement framework, and uses the theory of power balance, the theory of competition policy, the application of the soft law and the hard law theory in the antitrust law. The legal and effective application of antitrust laws and policies in antitrust law enforcement is discussed, and the checks and balances within the anti-monopoly law enforcement procedures and the legal balance of the external judicial departments are studied. Through the research on the law enforcement and supervision procedures of administrative penalties, the discretion of administrative penalties, the broad policy, and the administrative guidance, the antitrust enforcement has emerged. In accordance with the current situation and needs of the reform of the administrative system in China, the necessity and implementation methods of establishing the Chinese competition committee, the administrative penalty Committee, the trial and the separation, the administrative judges and the establishment of the competition court are put forward. The introduction, the text and the conclusion are made in this paper, and the introduction introduces the background and the present situation of this study. The purpose and content of the research, the research ideas and methods, and the innovation and deficiency. The conclusion part summarizes the main conclusions of this article. The main body is composed of five chapters. The first chapter introduces the development of the theory of the three legal checks and balances, explores the basic law theory of the counterbalance of the antitrust administrative law enforcement, and probes into the three major theories on the antitrust law and The influence of law enforcement. First, it analyzes the basis and development of the theory of power balance, sums up the theory of decentralization and balance between Rock, Montesquieu and Hamilton, and studies the free competition of the classical school, the perfect competition of the neoclassical school, the development and application of the effective competition theory in the antitrust law enforcement, and the administration of the soft and hard law theories. The important role of the law is analyzed. On this basis, the theory of balance of power is summed up. The theory of competition and the combination of soft and hard law is the legal basis of the counterbalance of the law of antitrust law enforcement. The constitution of the antitrust law enforcement department, the setting of power, the relief and supervision are all reflected in the balance of power, the consideration of the competition policy in the antitrust law enforcement, and the monopoly of the monopoly law enforcement. The economic analysis of the market competition and the consequences of the damage reflects the important role of the competition theory in the anti-monopoly law enforcement. It explains the necessity of strengthening the three theoretical role in the practice of law enforcement, the necessity of adjusting the counterbalance of the antitrust judicature and the internal balance of the law enforcement departments. First, the theory of power balance is applied in the antitrust law enforcement. The current setting of antitrust law enforcement agencies embodies the balance of power. Secondly, the theory of competition plays an important role in the law enforcement of antimonopoly. The social effect in the anti-monopoly law enforcement, the discretionary power of administrative punishment and the anti trust administrative guidance in the anti-monopoly law enforcement are obvious. The second chapter puts forward the problems of the anti-monopoly law enforcement in China because of the internal balance between the law enforcement and the anti trust law enforcement agencies. The scope of authorization of the Department, the setting of the preliminary investigation right, the discontinuance of the provisions of the investigation and commitment, the policy of wide exemption, the different setting of the law enforcement procedures, and the consequences of the fragmentation and enforcement of the antitrust law and the lack of authority due to the different rules and regulations of the law enforcement departments. The two law enforcement departments of the development and Reform Commission and the General Administration for Industry and Commerce have low law enforcement competition and low efficiency in law enforcement style, law enforcement mode and law enforcement transparency. The antitrust procedures are not perfect, and the excessive discretion has caused the legal rights and interests of the administrative counterpart to not be effectively guaranteed and the judicial review of the antitrust law enforcement is not enough and the problem is not enough. The three chapter analyzes the balance and effect of antitrust law enforcement agencies. First, it analyzes the state and existing problems of the counterbalance between the anti-monopoly law enforcement departments, and considers that there is a cross of antitrust duties, the enforcement of law enforcement and the way of law enforcement, the difference of law enforcement effect leads to the formation of law enforcement fragmentation, and further causes the dismemberment of the law enforcement of antitrust law. Two the internal checks and balances of the antitrust law enforcement agencies including the law enforcement procedure and the law enforcement supervision have been combed, including reporting, accepting, on-site inspection, collecting evidence, hearing, administrative punishment, administrative reconsideration and the whole procedure of litigation, compared with the French and European Commission, and the procedures of Japan in anti monopoly law enforcement to clarify China's counterpart. The problems existing in the monopoly law enforcement department are analyzed. The legal balance between the upper and lower levels of the anti monopoly law enforcement agencies of China is re analyzed. The anti monopoly administrative law enforcement agencies have restricted the relationship between administrative authorization, administrative reconsideration and administrative litigation. After the new administrative reconsideration law and administrative procedure law have been amended, the superior antitrust law enforcement departments and the lower antitrust enforcement agencies are held. The balance of the law department is more obvious. The fourth chapter studies the balance between the judicial department and the anti-monopoly law enforcement. It combines the latest practice of the international and domestic antitrust judicature. First, the court and the administrative law enforcement department of the antitrust administrative law enforcement departments are discussed. The influence of the new administrative procedure law on the decision of the antitrust law enforcement of the court's judicial review, the effect of the judicial review on the anti-monopoly law enforcement, the influence of the judicial review on the effect of the judicial review. On the basis of the study, the author puts forward the system of establishing the judicial review of the European and American judicial review on the administrative law enforcement of antitrust administrative law. It also analyzes the emphasis of the judicial review of the antitrust administrative law enforcement, the distribution of the burden of proof in the antitrust litigation cases, and the court's research on the restriction of the abuse of administrative punishment by the antitrust law enforcement agencies. This chapter, through the judicial review of antitrust judicial review on the administrative law enforcement of antitrust, further illustrates the shortcomings of the current antitrust judicial checks and balances. The fifth chapter is a further application of the theory of balance of power, competition theory, the combination of soft law and hard law, and the existence of the legal checks and balances of antitrust law enforcement in the previous chapters. A specific solution to the problems of institutional, structural and procedural problems. In view of the decentralization of the rights of the three anti-monopoly law enforcement departments, the competition of law enforcement, the low efficiency and the breakdown of the law, the Chinese Competition Commission of a unified antitrust law enforcement department is set up, and the administrative penalty committee is set up in the competition committee, the separation of trial and the antitrust competition is implemented. In order to increase the transparency and impartiality of the law enforcement, the law enforcement bureau is responsible for the investigation of cases by the administrative penalty Committee. In order to increase the transparency and impartiality of the law enforcement, the whole process of recording the process of law enforcement is carried out, the system of antitrust administrative penalty discretion is carried out to prevent the abuse of rights and law enforcement, and the administrative judge system is pushed to promote the neutrality of law enforcement. The effective counterbalance of antitrust law enforcement is put forward to establish competition tribunals, unified trial antitrust and other competitive cases, including anti-monopoly civil and administrative litigation, to establish an excellent and stable contingent of competitive judges, to carry out the court's mode of respect for administration, to establish a balanced judicial and law enforcement system to implement antitrust law and to promote the basis of competition policy. To establish a unified, orderly, fair and just market economic order.
【学位授予单位】：对外经济贸易大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D922.294
，
本文编号：2161095
[Abstract]:The anti-monopoly law enforcement has an important influence on the competition pattern of China and the international. This article takes the legal balance mechanism of antitrust law enforcement as the research object, analyzes the existing problems and consequences of the existing anti-monopoly law enforcement framework, and uses the theory of power balance, the theory of competition policy, the application of the soft law and the hard law theory in the antitrust law. The legal and effective application of antitrust laws and policies in antitrust law enforcement is discussed, and the checks and balances within the anti-monopoly law enforcement procedures and the legal balance of the external judicial departments are studied. Through the research on the law enforcement and supervision procedures of administrative penalties, the discretion of administrative penalties, the broad policy, and the administrative guidance, the antitrust enforcement has emerged. In accordance with the current situation and needs of the reform of the administrative system in China, the necessity and implementation methods of establishing the Chinese competition committee, the administrative penalty Committee, the trial and the separation, the administrative judges and the establishment of the competition court are put forward. The introduction, the text and the conclusion are made in this paper, and the introduction introduces the background and the present situation of this study. The purpose and content of the research, the research ideas and methods, and the innovation and deficiency. The conclusion part summarizes the main conclusions of this article. The main body is composed of five chapters. The first chapter introduces the development of the theory of the three legal checks and balances, explores the basic law theory of the counterbalance of the antitrust administrative law enforcement, and probes into the three major theories on the antitrust law and The influence of law enforcement. First, it analyzes the basis and development of the theory of power balance, sums up the theory of decentralization and balance between Rock, Montesquieu and Hamilton, and studies the free competition of the classical school, the perfect competition of the neoclassical school, the development and application of the effective competition theory in the antitrust law enforcement, and the administration of the soft and hard law theories. The important role of the law is analyzed. On this basis, the theory of balance of power is summed up. The theory of competition and the combination of soft and hard law is the legal basis of the counterbalance of the law of antitrust law enforcement. The constitution of the antitrust law enforcement department, the setting of power, the relief and supervision are all reflected in the balance of power, the consideration of the competition policy in the antitrust law enforcement, and the monopoly of the monopoly law enforcement. The economic analysis of the market competition and the consequences of the damage reflects the important role of the competition theory in the anti-monopoly law enforcement. It explains the necessity of strengthening the three theoretical role in the practice of law enforcement, the necessity of adjusting the counterbalance of the antitrust judicature and the internal balance of the law enforcement departments. First, the theory of power balance is applied in the antitrust law enforcement. The current setting of antitrust law enforcement agencies embodies the balance of power. Secondly, the theory of competition plays an important role in the law enforcement of antimonopoly. The social effect in the anti-monopoly law enforcement, the discretionary power of administrative punishment and the anti trust administrative guidance in the anti-monopoly law enforcement are obvious. The second chapter puts forward the problems of the anti-monopoly law enforcement in China because of the internal balance between the law enforcement and the anti trust law enforcement agencies. The scope of authorization of the Department, the setting of the preliminary investigation right, the discontinuance of the provisions of the investigation and commitment, the policy of wide exemption, the different setting of the law enforcement procedures, and the consequences of the fragmentation and enforcement of the antitrust law and the lack of authority due to the different rules and regulations of the law enforcement departments. The two law enforcement departments of the development and Reform Commission and the General Administration for Industry and Commerce have low law enforcement competition and low efficiency in law enforcement style, law enforcement mode and law enforcement transparency. The antitrust procedures are not perfect, and the excessive discretion has caused the legal rights and interests of the administrative counterpart to not be effectively guaranteed and the judicial review of the antitrust law enforcement is not enough and the problem is not enough. The three chapter analyzes the balance and effect of antitrust law enforcement agencies. First, it analyzes the state and existing problems of the counterbalance between the anti-monopoly law enforcement departments, and considers that there is a cross of antitrust duties, the enforcement of law enforcement and the way of law enforcement, the difference of law enforcement effect leads to the formation of law enforcement fragmentation, and further causes the dismemberment of the law enforcement of antitrust law. Two the internal checks and balances of the antitrust law enforcement agencies including the law enforcement procedure and the law enforcement supervision have been combed, including reporting, accepting, on-site inspection, collecting evidence, hearing, administrative punishment, administrative reconsideration and the whole procedure of litigation, compared with the French and European Commission, and the procedures of Japan in anti monopoly law enforcement to clarify China's counterpart. The problems existing in the monopoly law enforcement department are analyzed. The legal balance between the upper and lower levels of the anti monopoly law enforcement agencies of China is re analyzed. The anti monopoly administrative law enforcement agencies have restricted the relationship between administrative authorization, administrative reconsideration and administrative litigation. After the new administrative reconsideration law and administrative procedure law have been amended, the superior antitrust law enforcement departments and the lower antitrust enforcement agencies are held. The balance of the law department is more obvious. The fourth chapter studies the balance between the judicial department and the anti-monopoly law enforcement. It combines the latest practice of the international and domestic antitrust judicature. First, the court and the administrative law enforcement department of the antitrust administrative law enforcement departments are discussed. The influence of the new administrative procedure law on the decision of the antitrust law enforcement of the court's judicial review, the effect of the judicial review on the anti-monopoly law enforcement, the influence of the judicial review on the effect of the judicial review. On the basis of the study, the author puts forward the system of establishing the judicial review of the European and American judicial review on the administrative law enforcement of antitrust administrative law. It also analyzes the emphasis of the judicial review of the antitrust administrative law enforcement, the distribution of the burden of proof in the antitrust litigation cases, and the court's research on the restriction of the abuse of administrative punishment by the antitrust law enforcement agencies. This chapter, through the judicial review of antitrust judicial review on the administrative law enforcement of antitrust, further illustrates the shortcomings of the current antitrust judicial checks and balances. The fifth chapter is a further application of the theory of balance of power, competition theory, the combination of soft law and hard law, and the existence of the legal checks and balances of antitrust law enforcement in the previous chapters. A specific solution to the problems of institutional, structural and procedural problems. In view of the decentralization of the rights of the three anti-monopoly law enforcement departments, the competition of law enforcement, the low efficiency and the breakdown of the law, the Chinese Competition Commission of a unified antitrust law enforcement department is set up, and the administrative penalty committee is set up in the competition committee, the separation of trial and the antitrust competition is implemented. In order to increase the transparency and impartiality of the law enforcement, the law enforcement bureau is responsible for the investigation of cases by the administrative penalty Committee. In order to increase the transparency and impartiality of the law enforcement, the whole process of recording the process of law enforcement is carried out, the system of antitrust administrative penalty discretion is carried out to prevent the abuse of rights and law enforcement, and the administrative judge system is pushed to promote the neutrality of law enforcement. The effective counterbalance of antitrust law enforcement is put forward to establish competition tribunals, unified trial antitrust and other competitive cases, including anti-monopoly civil and administrative litigation, to establish an excellent and stable contingent of competitive judges, to carry out the court's mode of respect for administration, to establish a balanced judicial and law enforcement system to implement antitrust law and to promote the basis of competition policy. To establish a unified, orderly, fair and just market economic order.
【学位授予单位】：对外经济贸易大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D922.294
，
本文编号：2161095
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